Opinion
No. 7195.
February 18, 1953.
Sesco V. Tipton, of Springfield, for petitioner.
Douglas W. Greene, of Springfield, Pros. Atty.
This is a habeas corpus proceeding. Plaintiff's petition, the allegations of which were included by reference in his reply to the sheriff's return, stated:
"That petitioner is a minor of the age of twenty years and inexperienced in legal matters and is also suffering from a nervous disturbance which developed during his service overseas in the armed forces; that petitioner was not represented by counsel at the time of his conviction, which was upon a purported plea of guilty in the Magistrate Court of Greene County, Missouri; that petitioner had no fair opportunity to secure counsel, as he was arrested at midnight the night of February 4, 1953, and sentenced at 9:00 a. m. the morning of February 5, 1953; that the purported plea of guilty was accepted without giving him a reasonable time to talk with a friend and an attorney, as required by law; that petitioner, because of his age, inexperience and state of health did not understand the consequences of his plea of guilty and had no one to advise him as to the consequences thereof; that petitioner entered the purported plea of guilty under a mistake and misapprehension; that said purported plea of guilty was made as the result of a violation by the court of petitioner's constitutional privilege against self-incrimination."
The sheriff's return had merely stated that the petitioner was in his custody pursuant to a commitment issued by the Magistrate. Upon a hearing the evidence showed that the petitioner was 20 years of age; that he was afflicted with a nervous ailment contracted when he was in the armed services overseas; that on January 3, about or shortly before midnight, he was driving a car on the streets of the City of Springfield at a speed estimated to be between 60 and 80 miles per hour. Officers gave chase and he eluded them but they later found him at his home. They did not there apprehend him but told him to appear at the prosecuting attorney's office the next morning at 9 o'clock. He told them he would not do so. The officers then told his mother to have him appear at that time and she agreed to try to talk him into it. The investigating officer testified that at that time he was very nervous and appeared to have been drinking.
The officers left and the next morning the petitioner went to work and never returned home until 12 o'clock noon. His mother then told him he was supposed to appear at the Prosecuting Attorney's office at 9:00 that morning and he merely said it was too late.
An information was filed and a warrant issued for him the afternoon of February 4th and was served about midnight. He was immediately committed to the Greene County jail where he spent the remainder of the night and the next morning at 9 o'clock was taken by the Deputy Sheriff directly to the Magistrate's Court. He was at once arraigned, the Magistrate asked him if he had a lawyer, to which question he replied that he did not. The information was then read to him and he was informed that he was charged with a misdemeanor. He was then asked if he wished to plead guilty or not guilty and was informed that if he wished to plead not guilty the case would be set for a later date so he could be represented by counsel. He entered a plea of guilty, and was sentenced to twelve months in the Greene County jail, and taken there forthwith. He was not given an opportunity and reasonable time to talk with a friend and an attorney before his plea of guilty was accepted by the magistrate. Petitioner testified in this hearing that he had no opportunity to consult an attorney or friend about his case, did not know the difference between a misdemeanor and a felony, but that he was under the impression that he could only receive a fine as punishment for a conviction of careless and reckless driving.
The right of one charged with crime to be represented by counsel is one of the cornerstones of American Jurisprudence and is universally recognized in the United States. The Federal Constitution guarantees to a defendant the right to appear in person and by counsel. VI Amendment, Constitution of U.S., and that right is guaranteed him by all the Constitutions that Missouri has had. Constitution of Mo. 1820, Art. XIII, § 9, Constitution of Mo. 1865, Art. I, § XVIII, Constitution of Mo. 1875, Art. II, § XXII, Constitution of Mo. 1945, Art. I, § 18(a), V.A.M.S.
For more than 70 years Section 544.170 RSMo 1949, V.A.M.S., has been upon our statutes and guarantees to a person confined in jail the right to "be permitted at all reasonable hours during the day to consult with counsel or other persons in his behalf; * * *," and any person or officer directly or by subterfuge who refuses him such right is guilty of a criminal offense. Section 558.380 RSMo 1949, V.A.M.S., provides:
"Any judge, magistrate or police judge who shall accept of a plea of guilty from any person charged with the violation of any statute or ordinance * * * without first giving the person charged with an offense an opportunity and reasonable time to talk with a friend and an attorney, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding three months, or by both such fine and imprisonment; and in addition, shall forfeit his office."
The new rules of criminal procedure promulgated by the Supreme Court of Missouri and effective January 1, 1953, provide, Rule 21.14, that while a person is in custody he "shall be permitted to consult with counsel or other persons in his behalf." Section 29.05 of the same rules states:
"Every person arrested and held in custody by any peace officer in any jail, police station or any other place, upon or without a warrant or other process for the alleged commission of a criminal offense, or upon suspicion thereof, shall be permitted to consult with counsel or other persons in his behalf, and, for such purpose, to use a telephone if one be available."
Even a casual reading of these constitutional, statutory and rule provisions can lead one only to the conclusion that the right to counsel is sacred and guaranteed to a defendant before he is compelled to plead to a criminal charge. Clearly the purpose of Section 558.380 Mo.R.S. 1949, V.A.M.S., was not merely a trap to catch some uninformed or unsuspecting magistrate, but was enacted for the benefit of a defendant who was hurriedly brought into court and his plea accepted without giving him time or opportunity to consult with an attorney and a friend. We think that this provision should be strictly followed by the magistrates and that it should appear of record that such time and opportunity had been afforded the accused. We think in this case that the defendant's rights were violated when his plea of guilty was accepted before he was afforded time and opportunity to consult with an attorney and a friend before entering his plea of guilty.
But this conclusion does not necessarily release defendant. He should be released from incarceration under the judgment and sentence entered upon his plea of guilty but he should not be released under the commitment issued upon his arrest and while awaiting trial. He should be rearraigned, given time and opportunity to consult with a friend and an attorney and then his case can be disposed of as though a former plea of guilty had not been entered. Pending a trial or disposition of his case, he would of course be entitled to give bond or upon failure to do so, he would remain in custody until his case could be heard. It is so ordered.
All concur.